Sibghat Ullah Khan, J. - (1.) EARLIER this writ petition was allowed by me on 30.3.2011 without hearing any one on behalf of workman respondent No. 1. Order dated 30.3.2011 is quoted below: Heard learned counsel for the petitioner. Shri Gopal Narain, learned counse l for the workman -respondent No. 1 states that twice he sent registered letters but his client is not responding, therefore, he is not in a position to argue the case. This writ petition is directed against award dated 15.10.1996 given, by Presiding Officer, Industrial Tribunal (IV), Agra in adjudication case No. 57 of 1994. The matter which was referred to the labour court was as to whether the action of petitioner - employer terminating the services of its workman -respondent No. 1 with effect from 17.12.1988 was fair and proper or not. The dispute was raised in the year 1994, i.e., after about six years of termination of service. Respondent No. 1 was bus conduct of. His services were terminated after domestic enquiry. Through order dated 6.4.1996 passed by the Industrial Tribunal It was held that the domestic Inquiry was fair and proper. Second half portion of para -3 of the impugned award is quoted below: This Tribunal passed a detailed order on 6.4.1996 wherein it was held that domestic enquiry was fair and proper. Thereafter ample opportunity was given to the parties to lead evidence on the question of quantum of punishment, that they may want to lead and think fit to lead. But none of the parties wished to lead any evidence. Consequently this Tribunal once again heard the parties and went though the records on file on 15.10.1996. The allegation against the workman was that at the time of surprise inspection/checking on 24.8.1986. it was found that out of 57 passengers. 14 passengers had been issued tickets for shorter distance and of lesser amount. Total loss caused was of only Rs. 7. The Industrial Tribunal held that the allegation was not proved beyond reasonable doubt. In para -9 of the impugned award it is mentioned that employer brought on record that earlier also there were charges of irregularities committed by the workman and he had been punished for those actions. In para -12 of the written statement filed by the employer petitioner before the Industrial Tribunal earlier instances of mis -conduct and punishment were mentioned. Copy of the said written statement is Annexure -2 to the writ petition. The charges were that on 15.7.1984 two passengers were found without ticket and one month's allowance for good conduct was withheld. Similarly. on 6.8.1984 two passengers were found ticket less and four months allowance for good conduct was withheld. On 14.8.1986. one passenger was found ticket less and four months allowance for good conduct was withheld. On 25.4.1987 one passenger was found ticket less and two months allowance for good conduct was withheld. On 30.11.1988. four passengers were found without ticket and six months allowance for good conduct was withheld. Carrying ticket less passengers by conductor is a serious mis -conduct. Conductor holds a position of trust. Quantum of loss is not much material vide N. W. Karnataka R.T.C. v. H.H. Pujar, : AIR 2008 S.C. 3060; Divisional Manager, Rajasthan S.R.T.C. v. Kamruddin. : AIR 2009 SC 2528 and U.P.S.R.T.C. v. Nanhey Lal Kushwaha. : 2009 (8) SCC 772. The Supreme Court in Govt. of A.P. v. Mohd. Taher Ali. : AIR 2008 SC 375, has held that earlier lapse of delinquent may also be taken into consideration while deciding the question of punishment. It was, therefore, not a case where punishment of termination could legally be diluted by the Industrial Tribunal. Accordingly, writ petition is allowed. Impugned award is set aside. Thereafter restoration application was filed on 22.9.2011. During pendency of the restoration application learned counsel for workman respondent No. 1 was directed to file counter -affidavit to the writ petition so that in case restoration application was allowed matter could be heard on merit at once. Thereafter. counter and rejoinder -affidavits were filed. On 4.10.2012. restoration application was allowed, arguments of learned counsel for both the parties on the merit of the writ petition were heard and judgment was reserved.
(2.) ALONGWITH the counter -affidavit copy of charge -sheet, copy of the report of inquiry officer after completion of domestic inquiry dated 22.2.1988 and reply of petitioner to second show cause notice by the appointing authority have been filed as Annexure CA -1 to the counter -affidavit. There were two charges in the charge -sheet. The first was that out of 57 passengers present in the bus at the time of inspection 14 had been issued tickets for shorter distance in the sense that they had boarded the bus from Chaumuha, however they were issued tickets from Jaitya. The other charge was that some blocks of ticket book were unfilled. In respect of the first charge, the inquiry officer himself accepted the explanation of the workman that those 14 passengers had boarded the bus from Jaitya and not from Chaumuha and merely because one of them stated that he was resident of Chaumuha, the inspecting team wrongly drew the interference that 14 passengers had boarded from Chaumuha. The inquiry officer categorically held that charge of carrying 14 passengers without ticket of proper distance was not proved beyond doubt. However, in respect of the other charge/allegation that some tickets were blank, the inquiry officer held that it was against the Rule and violation of code of conduct which proved that the conduct of the workman was doubtful. The Inquiry Officer did not find the workman guilty of any misappropriation or financial irregularity. Date of the report of inquiry officer is not clear.
(3.) ANNEXURE CA -2 is the copy of promotion order dated 25.4.2011 through which workman has been promoted to the post of booking clerk from the post of conductor. In para -14 of the counter -affidavit. It has been stated that pursuant to the impugned award workman recovered Rs. 3,24,392 through order dated 22.10.1997 (passed by Deputy Labour Commissioner. Agra). That order is Annexure CA -5. In the said order, it is mentioned that the employers had not filed any stay order. In fact stay order had been passed on 11.8.1997 but the employers did not file the same before the labour court. Through interim order petitioners were directed to pay last drawn wages to the workman. It is undisputed that thereafter workman was reinstated.;